Burl v. State

908 So. 2d 314 (2005)

D'Rille BURL
v.
STATE of Alabama.

CR-03-0542.

Court of Criminal Appeals of Alabama.

October 29, 2004. Rehearing Denied December 17, 2004. Certiorari Denied March 11, 2005.

D'Rille Burl, pro se.

Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.

Alabama Supreme Court 1040468.

SHAW, Judge.

D'Rille Burl appeals the circuit court's summary denial of what he styled as a petition for a writ of habeas corpus, in which he sought reconsideration of his sentence of life imprisonment imposed pursuant to the Habitual Felony Offender Act ("the HFOA") for his conviction for the unlawful distribution of a controlled substance.

Burl filed his petition on April 25, 2003. In his petition, Burl alleged that he had been convicted of the unlawful distribution of a controlled substance and had been sentenced to life imprisonment pursuant to the HFOA; that he was a nonviolent offender with no violent felony convictions; and that, therefore, pursuant to § 13A-5-9.1, Ala.Code 1975, making retroactive an amendment to the HFOA effective May 25, 2000, he was entitled to have his sentence reconsidered. Burl requested that the circuit court order the Department of Corrections ("the DOC") to comply with § 13A-5-9.1 by evaluating his conduct while in prison and submitting that evaluation to the circuit court so that he could then have his sentence reconsidered. After receiving a response from the DOC, the circuit court summarily denied the petition on November 21, 2003.

In Kirby v. State, 899 So. 2d 968 (Ala.2004), the Alabama Supreme Court held that a motion filed pursuant to § 13A-5-9.1 ("a § 13A-5-9.1 motion") is the proper avenue for seeking reconsideration of a sentence under the 2000 amendment to the HFOA. The Court specifically stated that "[s]ection 13A-5-9.1 contemplates the availability of the circuit court to hear a motion seeking the implementation of that statute, and the Legislature has the power to vest the circuit courts with jurisdiction under these circumstances." Kirby, 899 So.2d at 971. The Court further held that "[w]hile the information available to the court in the DOC's evaluation will be helpful in making its determination, we conclude that the administration of § 13A-5-9 requires that if the DOC does not provide the evaluation in a timely fashion, the State will have waived any input as to the inmate's conduct while incarcerated that the sentencing judge or the presiding judge might otherwise have considered in determining whether the inmate is a nonviolent offender." 899 So.2d at 974-75. The Court's holding in Kirby implicitly overruled this Court's holding in Robinson v. State, 837 So. 2d 882 (Ala.Crim.App.2002) (Shaw, J., concurring in the result), that Rule 32, Ala.R.Crim.P., is the proper avenue for seeking implementation of § 13A-5-9.1, and that the evaluation contemplated by § 13A-5-9.1 is a prerequisite to reconsideration of a sentence.

In this case, Burl's petition was styled as a petition for a writ of habeas corpus; however, in substance, Burl's petition requests reconsideration of his sentence pursuant to § 13A-5-9.1.

"[T]he mere mislabeling of a motion is not fatal. King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So. 2d 714, 718 (Ala.1987). This Court has stated that it is `committed to the proposition that it will treat a motion (or other pleading) and its assigned grounds according to its substance.' King Mines Resort, 518 So.2d at 718; see also Lockhart v. Phenix City Inv. Co., 488 So. 2d 1353 (Ala.1986), and Sexton v. Prisock, 495 So. 2d 581 (Ala.1986). Further, the Court has held that `[t]he substance of a motion and not its style determines what kind of motion it is.' Evans v. Waddell, 689 So. 2d 23, 26 (Ala.1997)."

Ex parte Deramus, 882 So. 2d 875, 876 (Ala.2002). Thus, we treat Burl's petition according to its substance, not its style—we treat it as a § 13A-5-9.1 motion.

Section 13A-5-9.1 specifically provides for the reconsideration of a sentence "by the sentencing judge or presiding judge." As the Supreme Court held in Kirby, "[s]ection 13A-5-9.1 is an act of statewide application that confers jurisdiction upon the sentencing judge or the presiding judge to apply the 2000 amendment to the HFOA retroactively." 899 So.2d at 972. Although normally a trial court loses jurisdiction to modify a sentence more than 30 days after sentencing, by enacting § 13A-5-9.1, "the Legislature vested jurisdiction in the sentencing judge or the presiding judge to reopen a case more than 30 days after a defendant has been sentenced." Kirby, 899 So.2d at 971 (emphasis added). Thus, a § 13A-5-9.1 motion must be filed in the court of original conviction, and only the sentencing judge or the presiding judge of that circuit has jurisdiction to review the motion. Because only the sentencing judge or the presiding judge of the circuit in which the inmate was convicted and sentenced has jurisdiction to reconsider a sentence under § 13A-5-9.1, a § 13A-5-9.1 motion filed in the wrong circuit court should be transferred to the court of original conviction for appropriate disposition. See, e.g., Floyd v. State, 823 So. 2d 725 (Ala.Crim.App.2001) (petition for a writ of habeas corpus filed in the wrong circuit court should be transferred to the appropriate court for disposition), and Hiett v. State, 642 So. 2d 492, 494 n. 3 (Ala.Crim.App.1993) (Rule 32, Ala.R.Crim. P., petition filed in the wrong court should be transferred "to the court with the authority" to rule on the petition).

Although Burl did not allege in his petition which county he had been convicted and sentenced in, a review of our own records reflects that he was convicted and sentenced in the Jefferson Circuit Court, not the Bibb Circuit Court.^[1] Therefore, the Bibb Circuit Court lacked jurisdiction to rule on Burl's § 13A-5-9.1 motion for reconsideration of his sentence, and its summary denial of the motion is void. We certainly do not fault the circuit court in this case for summarily denying Burl's petition instead of transferring it to the court of original conviction, as it did not have the benefit of the Alabama Supreme Court's decision in Kirby at the time it did so. Nevertheless, Burl's motion should now be transferred to the court of original conviction.^[2]

Because a void judgment will not support an appeal, this appeal is due to be, and is hereby, dismissed. See, e.g., Madden v. State, 885 So. 2d 841 (Ala.Crim.App.2003). However, Burl's motion still stands as filed in the Bibb Circuit Court awaiting disposition. Therefore, we direct the Bibb Circuit Court to treat Burl's petition as a § 13A-5-9.1 motion and to transfer the motion to the Jefferson Circuit Court for review by the sentencing judge or the presiding judge.^[3]

APPEAL DISMISSED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

NOTES

[1] This court may take judicial notice of its own records. See Hull v. State, 607 So. 2d 369, 371 (Ala.Crim.App.1992).

[2] We note that Burl does not pursue on appeal the claim that he is entitled to reconsideration of his sentence pursuant to § 13A-5-9.1. Instead, he raises a new claim on appeal that was not presented in his petition—that he was denied due process when he was removed from what he terms the "Crime Bill Program at Bibb County Correctional Facility." (Burl's brief at p. 4.) Because this new claim was not included in Burl's petition, it is not properly before this Court for review. Moreover, because the circuit court lacked jurisdiction to rule on the claim in Burl's petition, the fact that Burl has abandoned that claim on appeal does not affect our disposition of this case.

[3] If Burl wishes to appeal the ruling by the Jefferson Circuit Court, he must file a separate notice of appeal in Jefferson Circuit Court.